[Introduced February 11, 2011; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]

____________

A BILL to repeal §3-4A-13a of the Code of West Virginia, 1931, as
amended; and to amend and reenact §3-4A-2, §3-4A-3, §3-4A-4,
§3-4A-6, §3-4A-9, §3-4A-9a, §3-4A-9b, §3-4A-10, §3-4A-10a, §3-4A-13, §3-4A-17, §3-4A-19, §3-4A-20 and §3-4A-27, all relating
generally to the use of electronic voting systems; setting forth
the requirements of electronic voting systems; providing that if
five percent of the registered voters in a county sign a petition
not to use electronic voting for that county, the issue will be put
on the ballot in that county; providing that if an electronic
voting system is terminated, the one replacing it must comply with
the federal Help America Vote Act of 2002; deleting the requirement
that the purchase or lease of vote-recording devices must be paid
in cash; and deleting outmoded terms and voting systems no longer
being used.

Be it enacted by the Legislature of West Virginia:

That §3-4A-13a of the Code of West Virginia, 1931, as amended,
be repealed; and that §3-4A-2, §3-4A-3, §3-4A-4, §3-4A-6, §3-4A-9,
§3-4A-9a, §3-4A-9b, §3-4A-10, §3-4A-10a, §3-4A-13, §3-4A-17,
§3-4A-19, §3-4A-20 and §3-4A-27 of said code be amended and
reenacted, all to read as follows:

ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.

§3-4A-2. Definitions.

As used in this article, unless otherwise specified:

(1) "Automatic tabulating equipment" means all apparatus
necessary to electronically count votes recorded on ballots and
tabulate the results;

(2) "Ballot" means a tabulating cardan electronic image or
paper on which votes may be recorded by means of perforating or
marking with electronically sensible ink or pencil or a screen upon
which votes may be recorded by means of a stylus or by means of
touch;

(3) "Central counting center" means a facility equipped with
suitable and necessary automatic tabulating equipment, selected by
the county commission, for the electronic counting of votes
recorded on ballots;

(4) “Electronic poll book” means an electronic device
containing the same voter registration information maintained by
the county clerk in a printed poll book.

(5) "Electronic voting system" is a means of conducting an
election whereby votes are recorded on ballots by means of an
electronically sensible marking ink, by perforating or are recorded
on equipment that registers votes on a computer disk, or by
touching a screen with a stylus or by means of touch, and votes are
subsequently counted by automatic tabulating equipment at the
central counting center;

(6) "Program deck" means the actual punch card deck or decks,
or a computer program disk, diskette, tape or other programming
media, containing the program for counting and tabulating the
votes, including the "application program deck";

(7) "Application program deck" means the punch card deck or
equivalent capacity in other program medias as provided, containing
specific options used and necessary to modify the program of
general application, to conduct and tabulate a specific election
according to applicable law;

(8)(6) "Standard validation test deck" means a group of
ballots wherein all voting possibilities which can occur in an
election are represented; and

(9)(7) "Vote-recording device" means equipment in which
ballot labels and ballots are placed to allow a voter to record his
or her vote by perforating or equipment withelectronically
sensible ink, or pencil, or a screen upon which votes may be
recorded by means of a stylus or by means of touch.

§3-4A-3. Procedure for adopting electronic voting systems.

An electronic voting system that has been approved in
accordance with section eight of this article may be adopted for
use in general, primary and special elections in any county by the
following procedure and not otherwise:

By a majority of the members of the county commission voting
to adopt the same at a public meeting regularly called for that
purpose: Provided, That the meeting be held not less than six
months prior to a general election or six months prior to a primary
election, with notice thereof published as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. The publication area for such
publication shall be the county involved.

If five percent or more of the registered voters of a county
sign a petition requesting that the use of an electronic voting
system not be adopted in that county, the petition is to be filed
with the county commission within ninety days after the entry of
the order of intention to adopt the use of an electronic voting
system. In that instance, the county commission shall submit, at
the next general or primary election, whichever occurs first, to
the voters of the county the question: "Shall the use of an
electronic voting system be adopted in .................. County?"
If this question be answered in the affirmative by a majority of
the voters in the election, the use of an electronic voting system
will be adopted. If the question is not answered in the
affirmative by such majority, the use of an electronic voting
system will not be adopted.

§3-4A-4. Procedure for terminating use of electronic voting
systems.

The use of an electronic voting system may be terminated:

(1) By a majority of the members of the county commission
voting to terminate use of the system and replace it with a
different voting system meeting the requirements of the Help
America Vote Act of 2002, 42 U.S.C. §15301, et seq. at a special
public meeting called for the purpose of said termination, with due
notice thereof published as a Class II-O legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for such publication shall
be the county involved: Provided, That such meeting shall be held
not less than six months prior to a general election or six months
prior to a primary election. If at such meeting, such county
commission shall enter an order of its intention to terminate use
of an electronic voting system, it shall thereafter forthwith cause
to be published a certified copy of such order as a Class II-O
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such publication shall be the county involved. The first
publication of such order shall not be less than twenty days after
the entry of such order. Such county commission shall not
terminate the use of an electronic voting system until ninety days
after the entry of such order of its intention to terminate the
same. Promptly after the expiration of ninety days after the entry
of such order of intention to terminate the use of an electronic
voting system, if no petition has theretofore been filed with such
county commission requesting a referendum on the question of
termination of the electronic voting system as hereinafter
provided, such county commission shall enter a final order
terminating the use of the electronic voting system, and the use of
electronic voting system shall thereby be terminated. If a petition
has been submitted as provided in this subdivision, the county
commission shall not terminate the use of the system but shall
proceed as provided in this subdivision.

If five percent or more of the registered voters of such
county shall sign a petition requesting that the use of an
electronic voting system be terminated in such county and such
petition be filed with the county commission of such county within
ninety days after the entry of such order of intention to terminate
the use of an electronic voting system, such county commission
shall submit to the voters of such county at the next general or
primary election, whichever shall first occur, the question:
"Shall the use of an electronic voting system be terminated in
.................. County?" If this question be answered in the
affirmative by a majority of the voters in such election upon the
question, the use of an electronic voting system shall thereby be
terminated. If such question shall not be answered in the
affirmative by such majority, the use of an electronic voting
system shall continue.

(2) By the affirmative vote of a majority of the voters of
such county voting upon the question of termination of the use of
an electronic voting system in such county. If five percent or
more of the registered voters of such county shall sign a petition
requesting the termination of the use of an electronic voting
system in such county, and such petition be filed with the county
commission of such county, such county commission shall submit to
the voters of such county at the next general or primary election,
following by not less than ninety days the date of the filing of
such petition, the question: "Shall the use of an electronic
voting system be terminated in ................ County?" If this
question be answered in the affirmative by a majority of the voters
of such county voting upon the question, the use of an electronic
voting system shall thereby be terminated. If such question shall
not be answered in the affirmative by a majority of the voters of
such county voting upon the question, the use of an electronic
voting system shall thereby continue.

§3-4A-6. Acquisition of vote recording devices by purchase or
lease; acquisition of use of automatic tabulating
equipment; counting centers.

(a) A county commission may acquire vote recording devices by
any one or any combination of the following methods:

(1) By purchasing the same and paying the purchase price in
cash from funds available from the maximum general levy or from any
other lawful source; and

(2) By leasing the same under written contract of lease and
paying the rentals in cash from funds available from the maximum
general levy or any other lawful source.

(b) A county commission may acquire the use of automatic
tabulating equipment by leasing or renting the same under written
contract of lease or rental and paying the rentals therefor in cash
from funds available from the maximum general levy or other lawful
source.

(c) A county commission may enter into an agreement with
another county commission to share automatic tabulating equipment
if the automatic tabulating equipment may be transported to the
appropriate central counting centers. No ballots may be
transported for counting in any county other than the county in
which the votes were cast.

(d) A county commission is authorized to accept as a gift the
use of suitable automatic tabulating equipment.

(e) The county commission may also secure a counting center.

§3-4A-9. Minimum requirements of electronic voting systems.

An electronic voting system of particular make and design may
not be approved by the State Election Commission or be purchased,
leased or used by any county commission unless it meets the
following requirements:

(1) It secures or ensures the voter absolute secrecy in the
act of voting or, at the voter's election, provides for open
voting;

(2) It is constructed to ensure that no person, except in
instances of open voting as provided in this section, can see or
know for whom any voter has voted or is voting;

(3) It permits each voter to vote at any election for all
persons and offices for whom and which he or she is lawfully
entitled to vote, whether or not the name of any person appears on
a ballot or ballot label as a candidate; and it permits each voter
to vote for as many persons for an office as he or she is lawfully
entitled to vote for; and to vote for or against any question upon
which he or she is lawfully entitled to vote. The automatic
tabulating equipment used in electronic voting systems is to reject
choices recorded on any ballot if the number of choices exceeds the
number to which a voter is entitled;

(4) It permits each voter to deposit, write in affix upon a
ballot, card, envelope or other medium to be provided for that
purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots; or
ballot labels;

(5) It permits each voter to change his or her vote for any
candidate and upon any question appearing upon the ballots or
ballot labels up to the time when his or her ballot is deposited in
the ballot box or his or her ballot is cast by electronic means;

(6) It contains a program deck consisting of cards that are
sequentially numbered or consisting of a computer program disk,
diskette, tape or other programming media containing sequentially
numbered program instructions and coded or otherwise protected from
tampering or substitution of the media or program instructions by
unauthorized persons and capable of tabulating all votes cast in
each election;

(7) It contains two standard validation test decks approved as
to form and testing capabilities by the State Election Commission;

(8) It correctly records and counts accurately all votes cast
for each candidate and for and against each question appearing upon
the ballots; or ballot labels;

(9) It permits each voter at any election other than primary
elections by one mark or punch to vote a straight party ticket, as
provided in section five, article six of this chapter;

(10) It permits each voter in primary elections to vote only
for the candidates of the party for which he or she is legally
permitted to vote and precludes him or her from voting for any
candidate seeking nomination by any other political party, permits
him or her to vote for the candidates, if any, for nonpartisan
nomination or election and permits him or her to vote on public
questions;

(11) It, where applicable, is provided with means for sealing
or electronically securing the vote recording device to prevent its
use and to prevent tampering with ballot labelsthe device, both
before the polls are open or before the operation of the vote
recording device for an election is begun and immediately after the
polls are closed or after the operation of the vote recording
device for an election is completed;

(12) It has the capacity to contain the names of candidates
constituting the tickets of at least nine political parties and
accommodates the wording of at least fifteen questions;

(13) (A) Direct recording electronic voting machines must
generate a paper copy of each voter’s votes that will be
automatically kept within a storage container, that is locked,
closely attached to the direct recording electronic voting machine,
and inaccessible to all but authorized voting officials, who will
handle such storage containers and such paper copies contained
therein in accordance with section nineteen of this article.

(B) The paper copy of the voter’s vote shall be generated at
the time the voter is at the voting station using the direct
recording electronic voting machine.

(C) The voter may examine the paper copy visually or through
headphone readout, and may accept or reject the printed copy.

(D) The voter may not touch, handle or manipulate the printed
copy manually in any way.

(E) Once the printed copy of the voter’s votes is accepted by
the voter as correctly reflecting the voter’s intent, but not
before, it will automatically be stored for recounts or random
checks and the electronic vote will be cast within the computer
mechanism of the direct recording electronic voting machine.

(F) Direct recording electronic voting machines with a
mandatory paper copy shall be approved by the Secretary of State.
The Secretary of State may promulgate rules and emergency rules to
implement or enforce this subsection pursuant to the provisions of
section five, article three, chapter twenty-nine-a of this code.

(14) Where vote recording devices are used, they shall:

(A) Be durably constructed of material of good quality and in
a workmanlike manner and in a form which makes it safely
transportable;

(B) Be constructed with frames for the placing of ballot
labels that the labels upon which are printed the names of
candidates and their respective parties, titles of offices and
wording of questions are reasonably protected from mutilation,
disfigurement or disarrangement or are constructed to ensure that
the screens upon which appear the names of the candidates and their
respective parties, titles of offices and wording of questions are
reasonably protected from any modification;

(C)(B) Bear a number that will identify it or distinguish it
from any other machine;

(D)(C) Be constructed to ensure that a voter may easily learn
the method of operating it and may expeditiously cast his or her
vote for all candidates of his or her choice and upon any public
question;

(E)(D) Be accompanied by a mechanically or electronically
operated instruction model which shows the arrangement of the
ballot labels, party columns or rows, and questions;

(F) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to provide for the direct electronic
recording and tabulating of votes cast in a system specifically
designed and engineered for the election application;

(G) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include
an audible or visual signal, or both, warning any voter who
attempts to vote for more than the allowable number of candidates
for any office or who attempts to cast his or her ballot prior to
its completion and are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of
the ballot;

(H) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to present the entire ballot to the voter, in
a series of sequential pages, and to ensure that the voter sees all
of the ballot options on all pages before completing his or her
vote and to allow the voter to review and change all ballot choices
prior to completing and casting his or her ballot;

(I) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to allow election commissioners to spoil a
ballot where a voter fails to properly cast his or her ballot, has
departed the polling place and cannot be recalled by a poll clerk
to complete his or her ballot;

(J) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to allow election commissioners, poll clerks,
or both, to designate, mark or otherwise record provisional
ballots;

(K) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, consist of devices which are independent, nonnetworked
voting systems in which each vote is recorded and retained within
each device’s internal nonvolatile electronic memory and contain an
internal security, the absence of which prevents substitution of
any other device;

(L) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each
device contains comprehensive diagnostics to ensure that failures
do not go undetected;

(M) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and
record votes;

(N) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to record all preelection, election and
post-election activities, including all ballot images and system
anomalies, in each device’s internal electronic memory and are to
be accessible in electronic or printed form;

(O) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed with a battery backup system in each device
to, at a minimum, prevent the loss of any votes, as well as all
preelection, election and post-election activities, including all
ballot images and system anomalies, stored in the device’s internal
electronic memory and to allow voting to continue for two hours of
uninterrupted operation in case of an electrical power failure; and

(P) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to prevent the loss of any votes, as well as
all preelection, election and post-election activities, including
all ballot images and system anomalies, stored in each device’s
internal electronic memory even in case of an electrical and
battery power failure.

(15) Electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch shall:

(A) Be constructed to provide for the direct electronic
recording and tabulating of votes cast in a system specifically
designed and engineered for the election application;

(B) Be constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include
an audible or visual signal, or both, warning any voter who
attempts to vote for more than the allowable number of candidates
for any office or who attempts to cast his or her ballot prior to
its completion and are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of
the ballot;

(C) Be constructed to present the entire ballot to the voter,
in a series of sequential pages, and to ensure that the voter sees
all of the ballot options on all pages before completing his or her
vote and to allow the voter to review and change all ballot choices
prior to completing and casting his or her ballot;

(D) Be constructed to allow election commissioners to spoil a
ballot where a voter fails to properly cast his or her ballot, has
departed the polling place and cannot be recalled by a poll clerk
to complete his or her ballot;

(E) Be constructed to allow election commissioners, poll
clerks, or both, to designate, mark or otherwise record provisional
ballots;

(F) Consist of devices which are independent, nonnetworked
voting systems in which each vote is recorded and retained within
each device’s internal nonvolatile electronic memory and contain an
internal security, the absence of which prevents substitution of
any other device;

(G) Store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each
device contains comprehensive diagnostics to ensure that failures
do not go undetected;

(H) Contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and
record votes;

(I) Be constructed to record all preelection, election and
post-election activities, including all ballot images and system
anomalies, in each device’s internal electronic memory and are to
be accessible in electronic or printed form;

(J) Be constructed with a battery backup system in each device
to, at a minimum, prevent the loss of any votes, as well as all
preelection, election and post-election activities, including all
ballot images and system anomalies, stored in the device’s internal
electronic memory and to allow voting to continue for two hours of
uninterrupted operation in case of an electrical power failure; and

(K) Be constructed to prevent the loss of any votes, as well
as all preelection, election and post-election activities,
including all ballot images and system anomalies, stored in each
device’s internal electronic memory even in case of an electrical
and battery power failure.

(a) For purposes of this section, "ballot-marking accessible
voting system" means a device which allows voters, including voters
with disabilities, to mark an optical scanning or mark-sensing
voting system ballot, privately and independently. The
ballot-marking device is capable of marking voter selections on an
optically readable or mark-sensing ballot which shall be
subsequently read and tallied on state certified optically readable
or mark-sensing ballot tabulating and reporting systems. Counties
are hereby permitted to obtain and employ ballot-marking accessible
voting systems that are approved by the State Election Commission.

(b) The ballot-marking accessible voting device shall be a
completely integrated ballot-marking device that is designed to
allow voters to either view ballot choices through a high
resolution visual display or listen to ballot choices with
headphones and then enter ballot selections directly through
specially designed, integrated accessibility keysdevices.

(c) Ballot-marking accessible voting systems may be used for
the purpose of marking or scanning optically readable or
mark-sensing ballots cast in all general, special and primary
elections and shall meet the following specific requirements:

(1) The ballot-marking accessible voting system, system
firmware and programming software must be certified by an
independent testing authority, according to current federal voting
system standards and be approved by the State Elections Commission
prior to entering into any contract.

(2) The ballot-marking accessible voting system shall,
additionally:

(A) Alert the voter if the voter has made more ballot
selections than the law allows for an individual office or ballot
issue;

(B) Alert the voter if the voter has made fewer ballot
selections than the law allows for an individual office or ballot
issue;

(C) Allow the voter to independently review all ballot choices
and make any corrections, before the ballot is marked;

(D) Provide the voter with the opportunity to make a write-in
ballot choice, where allowed by state law;

(E) Allow voters with disabilities to mark their ballots, in
complete independence, and in conformity with both federal and
state law concerning mandatory accessibility for disabled persons;

(G) Provide voters with an opportunity to change ballot
selections, or correct errors, before the ballot is marked for
voting, including the opportunity to correct the error through the
issuance of a replacement ballot if the voter was otherwise unable
to change the ballot or correct the error;

(H) Provide voters with the ability to view all ballot
selections through a high resolution visual display or to have all
ballot selections read to the voter through headphones;

(I) Ensure complete ballot privacy, while employing the
ballot-marking audio system and providing the voter with the option
to turn off the visual ballot display;

(K) Include the ability for a voter to employ a sip/puff
device to enter ballot choices;

(L) Allow the voter to magnify all ballot choices and to
adjust both the volume of the audio feature and the speed of ballot
presentation;

(M) Allow the voter to employ his or her own headset as well
as the headset provided with the ballot-marking device while being
equipped with multiple output connections to accommodate different
headsets;

(N) Have multiple-language capability; and

(O) Allow the voter to verify that:

(i) An optical scan ballot inserted into the device at the
start of voting is blank; and

(ii) The voted optical scan ballot that is produced by the
device is voted as the voter intended.

(d) The Secretary of State is hereby directed to propose rules
and emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
designed to ensure that any system employed by a county under the
provisions of this section is publicly tested prior to use in
election.

(a) For purposes of this section, “precinct ballot-scanning
device” means a device used by the voter at the precinct on
election day or during early voting for the purpose of scanning the
voter's ballot after the ballot has been voted but prior to
depositing the ballot into the ballot box.

(b) The precinct ballot-scanning device may be used for the
purpose of scanning optically readable ballots cast in all primary,
general and special elections.

(c) The precinct ballot-scanning device, firmware and
programming software must be certified by an independent testing
authority, according to current federal standards and be approved
by the State Election Commission. No election official may enter
into any contract to purchase, rent, lease or otherwise acquire any
precinct ballot-scanning device, firmware or software not approved
by the State Election Commission.

(d) The precinct ballot-scanning device shall additionally:

(1) Alert the voter if the voter has made more ballot
selections than the law allows for an individual office or ballot
issue;

(2) Alert the voter if the voter has made fewer ballot
selections than the law allows for an individual office or ballot
issue; and

(3) Allow voters an opportunity to change ballot selections,
or correct errors, including the opportunity to correct the error
through the issuance of a replacement ballot if the voter was
otherwise unable to change the ballot or correct the error.

(e) The precinct ballot-scanning device may be used for
tabulating election results only under the following conditions:

(1) The county has at least one precinct ballot-scanning
device in each precinct;

(2) No print out or tabulation of results is done at the
precinct;

(3) The “tabulation memory device” may be removed from the
ballot-scanning device only after the polls close and the votes may
only be counted at the central counting center on the night of the
election; and

(4) All voters at the precinct are required to use the ballot
scanning device as a condition of completing their vote.

(f) If the optical scan ballots from each of the precincts are
counted at the central counting center on election night in
accordance with section twenty-seven of this article, and the
results from that count are the results finally published on
election night, then any county meeting each of the requirements in
paragraphs (1) through (4) of subsection (e), may turn off the over
vote switch on the central counting device since every ballot will
have been evaluated for over votes by the precinct scanning device.

(g) The Secretary of State is hereby directed to propose rules
and emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code in
accordance with the provisions of this section.

§3-4A-10. County clerk to be custodian of vote-recording devices,
tabulating equipment and electronic poll books;
duties.

(a) When an electronic voting system is acquired by any county
commission, the vote-recording devices, where applicable, and the
tabulating equipment shall be immediately placed in the custody of
the county clerk and shall remain in his or her custody at all
times except when in use at an election or when in custody of a
court or court officers during contest proceedings. The clerk
shall see that the vote-recording devices and the tabulating
equipment are properly protected and preserved from damage or
unnecessary deterioration and shall not permit any unauthorized
person to tamper with them. The clerk shall also keep the
vote-recording devices and tabulating equipment in repair and of
preparingprepare the same for voting.

(b) When a county commission elects to acquire and use
electronic poll books in lieu of printed poll books, the clerk of
the county commission shall immediately take custody of the
electronic poll books, which shall remain in his or her custody at
all times except when in use at an election or when in the custody
of a court or court officers during contest proceedings. The clerk
shall ensure that the electronic poll books are properly protected
and preserved from damage or unnecessary deteriorations and the
clerk shall not permit any unauthorized person to tamper with the
electronic poll books. The clerk shall also keep the electronic
poll books in good repair and the clerk shall prepare the
electronic poll books for election day.

§3-4A-10a. Proportional distribution of vote recording devices.

Where vote recording devices are used, the county commission
of each county shall, upon the close of registration, review the
total number of active registered voters and the number of
registered voters of each party in each precinct. Prior to each
election, the commission shall determine the number of voting
devices needed to accommodate voters without long delays and shall
assign an appropriate number to each precinct. For the purposes of
the primary election, the commission shall assign the number of
vote recording devices in each precinct to be prepared for each
party based as nearly as practicable on the proportion of
registered voters of each party to the total: Provided, That a
minimum of one vote recording device per party be provided, except
for "independent" voters, which shall be determined under section
twenty of this articletwo vote recording devices be provided.

(a) When the clerk of the county commission has completed the
preparation of the ballots and of any electronic poll books and
vote-recording devices as provided in sections eleven-a and
twelve-a of this article and as provided in section twenty-one,
article one of this chapter, and not later than seven days before
the day of the election, he or she shall notify the members of the
county commission and the ballot commissioners that the ballots and
any electronic poll books and devices are ready for use.

(b) The members of the county commission and the ballot
commissioners shall convene at the office of the clerk or at such
other place at which any vote-recording devices or electronic poll
books and the ballots are stored, not later than five days before
the day of the election, and shall inspect the devices, electronic
poll books and the ballots to determine whether the requirements of
this article have been met. Notice of the place and time of the
inspection shall be published, no less than three days in advance,
as a Class I-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code. The
publication area is the county involved.

(c) Any candidate and one representative of each political
party on the ballot may be present during the examination. If the
devices and electronic poll books and ballots are found to be in
proper order, the members of the county commission and the ballot
commissioners shall endorse their approval in the book in which the
clerk entered the numbers of the devices opposite the numbers of
the precincts.

(d) The vote-recording devices, the electronic poll books and
the ballots shall then be secured in double lock rooms. The clerk
and the president or president pro tempore of the county commission
shall each have a key. The rooms shall be unlocked only in their
presence and only for the removal of the devices, electronic poll
books and the ballots for transportation to the polls. Upon
removal of the devices, the electronic poll books and the ballots,
the clerk and president or president pro tempore of the county
commission shall certify in writing signed by them that the
devices, the electronic poll books and packages of ballots were
found to be sealed when removed for transportation to the polls.

(e) Vote-recording devices used during the early voting period
may be used on election day if retested in accordance with all the
provisions of this section, including public notice between the
close of early voting and prior to precinct placement for election
day. Vote-recording devices containing a personal electronic
ballot (PEB), a programable memory chip and a printed paper trail
must comply with the applicable requirements of section twenty-six
of this article.

(f) Not later than one day before the election, the election
commissioner of each precinct previously designated by the ballot
commissioners shall attend at the office of the clerk of the county
commission to receive the necessary election records, books and
supplies required by law. The election commissioners shall receive
the per diem mileage rate prescribed by law for this service. The
election commissioners shall give the ballot commissioners a
sequentially numbered written receipt, on a printed form, provided
by the clerk of the county commission, for such records, books and
supplies. The receipt shall be prepared in duplicate. One copy of
the receipt shall remain with the clerk of the county commission
and one copy shall be delivered to the president or president pro
tempore of the county commission.

(a) In counties utilizing an electronic voting system where
votes are to be recorded by means of perforating or by touching a
screen with a stylus or by means of touch before permitting the
first voter to vote, the election commissioners shall examine the
vote-recording devices to ascertain whether the ballot labels are
arranged as specified on the facsimile diagram furnished to the
precinct. If the ballot labels are arranged incorrectly, the
commissioners shall immediately notify the clerk of the county
commission of the foregoing facts in writing, indicating the number
of the device, and obtain from the clerk a reserve vote-recording
device and thereafter proceed to conduct the election.

(b)(a) Any reserve vote-recording device so used is to be
prepared for use by the clerk or his or her duly appointed deputy
and the reserve vote-recording device is to be prepared, inspected
and sealed and delivered to the polling place wherein the seal is
to be broken and the device opened in the presence of the precinct
election commissioners who shall certify in writing signed by them
to the clerk of the county commission, that the reserve
vote-recording device was found to be sealed upon delivery to the
polling place, that the seal was broken and the device opened in
their presence at the polling place. The vote-recording device
found to have been with incorrect ballot labels is to be returned
immediately to the custody of the clerk who shall then promptly
cause the vote-recording device to be repaired, prepared and
resealed in order that it may be used as a reserve vote-recording
device if needed.

(c)(b) In counties using electronic poll books, the election
commissioners shall examine the electronic poll books to ascertain
whether the poll books are in working order before allowing any
voters to enter the polling location. If the electronic poll books
are not in working order, the election commissioners shall contact
the county clerk who shall immediately authorize a printed poll
book to serve in place of the electronic poll book for that
election. A printed poll book may accompany the electronic poll
book to each precinct.

(a) The election officers shall constantly and diligently
maintain a watch in order to see that no person votes more than
once and to prevent any voter from occupying the voting booth for
more than five minutes.

(b) In primary elections, before a voter is permitted to
occupy the voting booth, the election commissioner representing the
party to which the voter belongs shall direct the voter to the
vote-recording device or supply the voter with a ballot, as may be
appropriate, which will allow the voter to vote only for the
candidates who are seeking nomination on the ticket of the party
with which the voter is affiliated or for unaffiliated voters in
accordance with section thirty-one, article two of this chapter.

(c) The poll clerk shall issue to each voter when he or she
signs the poll book a printed card or ticket numbered to correspond
to the number on the poll book of the voter and in the case of a
primary election, indicating the party affiliation of the voter,
which numbered card or ticket is to be presented to the election
commissioner in charge of the voting booth.

(d) One hour before the opening of the polls the precinct
election commissioners shall arrive at the polling place and set up
the voting booths in clear view of the election commissioners.
Where applicable, they shall open the vote-recording devices, place
them in the voting booths, examine them to see that they have the
correct ballots or ballot labels, where applicable by comparing
them with the sample ballots, and determine whether they are in
proper working order. They shall open and check the ballots, the
electronic poll books, if applicable, supplies, records and forms
and post the sample ballots or ballot labels and instructions to
voters. Upon ascertaining that all ballots, supplies, electronic
poll books, if applicable, records and forms arrived intact, the
election commissioners shall certify their findings in writing upon
forms provided and collected by the clerk of the county commission
over their signatures to the clerk of the county commission. Any
discrepancies are to be noted and reported immediately to the clerk
of the county commission. The election commissioners shall then
number in sequential order the ballot stub of each ballot in their
possession and report in writing to the clerk of the county
commission the number of ballots received. They shall issue the
ballots in sequential order to each voter.

(e) Upon entering a precinct which is using an electronic poll
book, each voter shall be verified by use of the electronic poll
book to be a registered voter. If the voter is not registered
according to the electronic poll book within that precinct, the
poll clerk is to inform the voter of the proper precinct in which
the voter is registered.

(f) Where applicable, each voter shall be instructed how to
operate the vote-recording device before he or she enters the
voting booth.

(g) Where applicable, any voter who spoils, defaces or
mutilates the ballot delivered to him or her, on returning the
ballot to the poll clerks, shall receive another in its place.
Every person who does not vote any ballot delivered to him or her
shall, before leaving the election room, return the ballot to the
poll clerks. When a spoiled or defaced ballot is returned, the
poll clerks shall make a minute of the fact on the poll books, at
the time, write the word "spoiled" across the face of the ballot
and place it in an envelope for spoiled ballots.

Immediately on closing the polls, the election commissioners
shall ascertain the number of spoiled ballots during the election
and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the poll books the number
of persons who voted and shall report, in writing signed by them to
the clerk of the county commission, any irregularities in the
ballot boxes, the number of ballots cast, the number of ballots
spoiled during the election and the number of ballots unused. All
unused ballots are to be returned at the same time to the clerk of
the county commission who shall count them and record the number.
All unused ballots shall be stored with the other election
materials and destroyed at the expiration of twenty-two months.

(h) Each commissioner who is a member of an election board
which fails to account for every ballot delivered to it is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
more than $1,000 or confined in jail for not more than one year, or
both.

(i) The board of ballot commissioners of each county, or the
chair of the board, shall preserve the ballots that are left over
in their hands, after supplying the precincts as provided, until
the close of the polls on the day of election and shall deliver
them to the clerk of the county commission who shall store them
with the other election materials and destroy them at the
expiration of twenty-two months.

(j) Where ballots are used, the voter, after he or she has
marked his or her ballot, shall, before leaving the voting booth,
place the ballot inside the envelope or sleeve provided for this
purpose, with the stub extending outside the envelope, and return
it to an election commissioner who shall remove the stub and
deposit the envelope, if applicable, with the ballot inside in the
ballot box. No ballot from which the stub has been detached may be
accepted by the officer in charge of the ballot box, but the ballot
shall be marked "spoiled" and placed with the spoiled ballots. If
an electronic voting system is used that utilizes a screen on which
votes may be recorded by means of a stylus or by means of touch and
the signal warning that a voter has attempted to cast his or her
ballot has failed to do so properly has been activated and the
voter has departed the polling place and cannot be recalled by a
poll clerk to complete his or her ballot while the voter remains
physically present in the polling place, then two election
commissioners of different registered party affiliations, two poll
clerks of different registered party affiliations or an election
commissioner and a poll clerk of different registered party
affiliations shall spoil the ballot.

(k) The precinct election commissioners shall prepare a report
in quadruplicate of the number of voters who have voted and, where
electronic voting systems are used that utilize a screen on which
votes may be recorded by means of a stylus or by means of touch,
the number of ballots that were spoiled, as indicated by the poll
books, and shall place two copies of this report in the ballot box
or where electronic voting systems are used that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, shall place two copies of this report and the electronic
ballot devices in a container provided by the clerk of the county
commission, which thereupon is to be sealed with a paper seal
signed by the election commissioners to ensure that no additional
ballots may be deposited or removed from the ballot box. Two
election commissioners of different registered party affiliations
or two special messengers of different registered party
affiliations appointed by the clerk of the county commission, shall
forthwith deliver the ballot box or container to the clerk of the
county commission at the central counting center and receive a
signed numbered receipt therefor. The receipt must carefully set
forth in detail any and all irregularities pertaining to the ballot
boxes or containers and noted by the precinct election officers.

The receipt is to be prepared in duplicate, a copy of which
remains with the clerk of the county commission who shall have any
and all irregularities noted. The time of their departure from the
polling place is to be noted on the two remaining copies of the
report, which are to be immediately mailed to the clerk of the
county commission.

(l) The poll books, register of voters, unused ballots,
spoiled ballots and other records and supplies are to be delivered
to the clerk of the county commission, all in conformity with the
provisions of this section.

§3-4A-20. "Independent" voting in primary elections.

If at any primary elections, nonpartisan candidates for office
and public questions are submitted to the voters on which persons
registered as "independent" are entitled to vote, as provided in
section eighteenthirty-one, article two of this chapter, the
election officers shall provide a vote recording device, where
applicable, or the appropriate ballot to be marked by an
electronically sensible pen or ink, or by means of a stylus or by
means of touch or by other electronic means, so that "independent"
voters may vote only those portions of the ballot relating to the
nonpartisan candidates and the public questions submitted, or shall
provide a ballot containing only provisions for voting for those
candidates and upon those issues submitted common to the ballots
provided to all voters regardless of political party affiliation,
or both: Provided, That “independent” or “unaffiliated” voters may
vote in partisan primary elections as provided in section
thirty-one, article two of this chapter.

In counties utilizing electronic voting systems in which votes
are recorded by perforating, if vote recording devices are not
available for the "independent" voters, provisions are to be made
for sealing the partisan section or sections of the ballot or
ballot labels on a vote recording device using temporary seals,
thus permitting the independent voter to vote for the nonpartisan
section or sections of the ballot or ballot labels. After the
"independent" voter has voted, the temporary seals may be removed
and the device may then be used by partisan voters.

§3-4A-27. Proceedings at the central counting center.

(a) All proceedings at the central counting center are to be
under the supervision of the clerk of the county commission and are
to be conducted under circumstances which allow observation from a
designated area by all persons entitled to be present. The
proceedings shall take place in a room of sufficient size and
satisfactory arrangement to permit observation. Those persons
entitled to be present include all candidates whose names appear on
the ballots being counted or if a candidate is absent, a
representative of the candidate who presents a written
authorization signed by the candidate for the purpose and two
representatives of each political party on the ballot who are
chosen by the county executive committee chairperson. A reasonable
number of the general public is also freely admitted to the room.
In the event all members of the general public desiring admission
to the room cannot be admitted at one time, the county commission
shall provide for a periodic and convenient rotation of admission
to the room for observation, to the end that each member of the
general public desiring admission, during the proceedings at the
central counting center, is to be granted admission for reasonable
periods of time for observation: Provided, That no person except
those authorized for the purpose may touch any ballot or ballot
card or other official records and papers utilized in the election
during observation.

(b) All persons who are engaged in processing and counting the
ballots are to work in teams consisting of two persons of opposite
political parties, and are to be deputized in writing and take an
oath that they will faithfully perform their assigned duties.
These deputies are to be issued an official badge or identification
card which is assigned an identity control number and the deputies
are to prominently wear on his or her outer garments the issued
badge or identification card. Upon completion of the deputies'
duties, the badges or identification cards are to be returned to
the county clerk.

(c) Ballots are to be handled and tabulated and the write-in
votes tallied according to procedures established by the Secretary
of State, subject to the following requirements:

(1) In systems using punch card ballots, the ballot cards and
secrecy envelopes for a precinct are to be removed from the box and
examined for write-in votes before being separated and stacked for
delivery to the tabulator. Immediately after valid write-in votes
are tallied, the ballot cards are to be delivered to the tabulator.
No write-in vote may be counted for an office unless the voter has
entered the name of that office and the name of an official
write-in candidate for that office on the inside of the secrecy
envelope, either by writing, affixing a sticker or label or placing
an ink-stamped impression thereon;

(2)(1) In systems using ballots marked with electronically
sensible ink, ballots are to be removed from the boxes and stacked
for the tabulator which separates ballots containing marks for a
write-in position. Immediately after tabulation, the valid
write-in votes are to be tallied. No write-in vote may be counted
for an office unless the voter has entered the name of an official
write-in candidate for that office on the line provided, either by
writing, affixing a sticker or placing an ink-stamped impression
thereon;

(3)(2) In systems using ballots in which votes are recorded
upon screens with a stylus or by means of touch, the personalized
electronic ballots are to be removed from the containers and
stacked for the tabulator. Systems using ballots in which votes
are recorded upon screens with a stylus or by means of touch are to
tally write-in ballots simultaneously with the other ballots;

(4)(3) When more than one person is to be elected to an
office and the voter desires to cast write-in votes for more than
one official write-in candidate for that office, a single punch or
mark, as appropriate for the voting system, in the write-in
location for that office is sufficient for all write-in choices.
When there are multiple write-in votes for the same office and the
combination of choices for candidates on the ballot and write-in
choices for the same office exceed the number of candidates to be
elected, the ballot is to be duplicated or hand counted, with all
votes for that office rejected;

(5)(4) Write-in votes for nomination for any office and
write-in votes for any person other than an official write-in
candidate are to be disregarded;

(6)(5) When a voter casts a straight ticket vote and also
punches or marks the location for a write-in vote for an office,
the straight ticket vote for that office is to be rejected, whether
or not a vote can be counted for a write-in candidate; and

(7)(6) Official write-in candidates are those who have filed
a write-in candidate's certificate of announcement and have been
certified according to the provisions of section four-a, article
six of this chapter.

(d) If any ballot card is damaged or defective so that it
cannot properly be counted by the automatic tabulating equipment,
a true duplicate copy is to be made of the damaged ballot card in
the presence of representatives of each political party on the
ballot and substituted for the damaged ballot card. All duplicate
ballot cards are to be clearly labeled "duplicate" and are to bear
a serial number which is recorded on the damaged or defective
ballot card and on the replacement ballot card.

(e) The returns printed by the automatic tabulating equipment
at the central counting center, to which have been added write-in
and other valid votes, are, when certified by the clerk of the
county commission, to constitute the official preliminary returns
of each precinct or election district. Further, all the returns
are to be printed on a precinct basis. Periodically throughout and
upon completion of the count, the returns are to be open to the
public by posting the returns as have been tabulated precinct by
precinct at the central counting center. Upon completion of the
canvass, the returns are to be posted in the same manner.

(f) If for any reason it becomes impracticable to count all or
a part of the ballots with tabulating equipment, the county
commission may direct that they be counted manually, following as
far as practicable the provisions governing the counting of paper
ballots.

(g) As soon as possible after the completion of the count, the
clerk of the county commission shall have the vote recording
devices properly boxed or securely covered and removed to a proper
and secure place of storage.

NOTE: The purpose of this bill is to implement the use of
electronic voting systems and set forth the requirements of those
systems. The bill provides that if five percent of the registered
voters in a county sign a petition not to use electronic voting for
that county, the issue will be put on the ballot for that county.
The bill provides that if an electronic voting system is
terminated, the one replacing it must comply with the federal Help
America Vote Act of 2002. The bill deletes the requirement that
the purchase or lease of vote recording devices must be paid in
cash. The bill also deletes outmoded terms and voting systems no
longer being used.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.